ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF: 

	BOARD DATE:  11 September 2019

	DOCKET NUMBER:  AR20170018948


APPLICANT REQUESTS: in effect, removal of a DA Form 2627 (Record of 
Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) he received in 
1975 from his Official Military Personnel File (OMPF).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Forms 149 (Application for Correction of Military Record under the Provisions 
of Title 10, U.S. Code, Section 1552)
*	DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military 
Justice (UCMJ))
*	DA Form 2-1 (Personnel Qualification Record)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)
*	National Achieves Form 13075 (Questionnaire about Military Service)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United 
States Code (USC), section 1552 (b); however, the Army Board for Correction of 
Military Records conducted a substantive review of this case and determined it is in the 
interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states:

*	his Record of Proceedings under Article 15, UCMJ, should have been out of his 
files/records 5 years after the incident
*	some 30 years later, it still remains in his military record, which is unjust
*	because it is still in his record, he has problems applying for government/federal 
jobs when a back ground check is conducted
*	his record should be clean of any sort of Article 15 action because he was 
discharged under honorable conditions
*	he was a E-5 promotable on the E-6 promotion list
*	he wanted to complete 20 years in the Army, when this nightmare started with his 
promotion points, then his dreams were shattered
*	his DD Form 3355 has been misplaced
*	his promotion points are miscalculated and vanished without justifiable reason
*	National Personnel Records Center has yet to retrieve the form
*	to this day, St. Louis just cannot find that DA Form 3355

2.  The applicant enlisted in the Regular Army on 6 February 1974.

3.  At the time of the incident when the applicant received nonjudicial punishment, he 
was a specialist/E-4, stationed at Fort Hood, TX.  

4.  On 15 August 1995, the applicant’s commander informed him he was considering 
whether he should be punished under Article 15, Uniform Code of Military Justice 
(UCMJ).  The applicant declined trial by court-martial, consulted with counsel, and 
indicated he did not want a person to accompany him during the proceedings or submit 
matters on his own behalf. 

5.  On 18 August 1975, his commander found him guilty.  The applicant received 
nonjudicial punishment for assaulting of Private First Class X____, on or about 2200 
hours 20 July 1975, assaulting of Specialist/E-4 X____, on or about 2355 hours 20 July 
1975, and wrongfully communicating a threat to Sergeant X____ on or about 2355 
hours 20 July 1975.  His punishment included reduction to PFC/E-3 (suspended for 6 
months, extra duty and restriction, and forfeiture of pay.

6.  He appealed and the next higher authority granted partial relief by setting aside a 
portion of the punishment pertaining to extra duty.  

7.  Army Regulation 27-10 (Military Justice) in effect at the time, stated in cases of 
persons serving on active duty in an enlisted status and having completed 3 years or 
less of active Federal military service at the time of the offense, the original DA Form 
2627 copy is for permanent filing in the efficiency portion of the OMPF.

8.  On 1 March 1979 he was promoted to sergeant/E-5.

9.  He was released from active duty on 7 November 1979.  His DD Form 214 shows 
his rank as sergeant/E-5 and his narrative reason for separation as completion of 
required service.

10.  He enlisted again in the Regular Army on 14 May 1981 in the pay grade E-4.  He 
was promoted to SGT/E-5 on 1 April 1983.

11.  He was honorably discharged on 16 February 1987.  His DD Form 214 shows his 
rank as sergeant/E-5 and his narrative reason for separation as expiration term of 
service.  

12. The applicant requested a copy of his DA Form 3355 (Promotion Point Worksheet).  
A DA Form 3355 is not a document authorized for filing in the Army Military Human 
Resource Record and/or Interactive Personnel Electronic Records Management 
System.  Additionally, the ABCMR is not a repository of military records. 

13.  Army Regulation 27-10, effective 10 July 1987, Soldiers who are at the rank of 
specialist (SPC) and below (prior to punishment) the original DA Form 2627 will be filed 
locally in unit non-judicial punishment or unit personnel files.  Locally filed originals will 
be destroyed at the end of 2 years from the date of imposition of punishment or the 
Soldier's transfer.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined 
relief was warranted.  The applicant’s contentions were carefully considered.  The 
Board agreed the NJP was made a permanent record in his OMPF once the document 
was placed there; there is no provision to automatically remove NJP after a time period 
has elapsed.  However, the Board agreed to provide some relief by placing the NJP in 
the restricted folder of his OMPF allowing only authorized officials to review the 
document.  

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:X	:X	:X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


?
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a 
recommendation for partial relief.  As a result, the Board recommends that all 
Department of the Army records of the individual concerned be corrected by transferring 
the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 18 August 
1975, from the performance folder of his official military personnel file (OMPF) to the 
restricted folder.

2.  The Board further determined the evidence presented is insufficient to warrant a 
portion of the requested relief.  As a result, the Board recommends denial of so much of 
the application that pertains to removing the DA Form, dated 18 August 1975, from his 
OMPF.
	  
I certify that herein is recorded the true and complete record of the proceedings of the 
Army Board for Correction of Military Records in this case.

REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military 
records must be filed within three years after discovery of the alleged error or injustice.  
This provision of law also allows the Army Board for Correction of Military Records 
(ABCMR) to excuse an applicant's failure to timely file within the three-year statute of 
limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation 27-10 (Military Justice), in effect at the time, prescribed and 
implemented the policies and procedures pertaining to the administration of military 
justice.
	a.  Paragraph 3-15 (Records of punishment) stated in cases of persons serving on 
active duty in an enlisted status and having completed 3 years or less of active Federal 
military service at the time of the offense, the original DA Form 2627 copy is for 
permanent filing in the efficiency portion of the OMPF.
	b.  Paragraph 3-30 (Statue of limitations) stated the statute of limitations is 
applicable to the imposition of punishment under Article 15.
2.  Army Regulation 27-10, currently in effect, states Soldiers who are at the rank of 
specialist (SPC) and below (prior to punishment) the original DA Form 2627 will be filed 
locally in unit nonjudicial punishment or unit personnel files.  Locally filed originals will 
be destroyed at the end of 2 years from the date of imposition of punishment or the 
Soldier's transfer.
3.  Army Regulation 600-37 (Unfavorable Information) in effect at the time, prescribed 
policies and procedures regarding unfavorable information considered for inclusion in 
official personnel files.
	a.  Paragraph 3-3 (Filing of information exempt from the referral procedures), 
prescribed records of courts-martial, court-martial order, and records of nonjudicial 
punishment under the UCMJ, Article 15, may be filed in the performance portion of the 
OMPF without further referral to the recipient.
	b.  Paragraph 7-2 provides that once an official document has been properly filed in 
the OMPF, it is presumed to be administratively correct and to have been filed pursuant 
to an objective decision by competent authority.  Thereafter, the burden of proof rests 
with the individual concerned to provide evidence of a clear and convincing nature that 
the document is untrue or unjust, in whole or in part, thereby warranting its alteration or 
removal from the OMPF.
	c.  Petition for transfer of Article 15 applies only to members in grades E-6 and 
above.  Records of nonjudicial punishment may be transferred upon proof that their 
intended purpose has been served or that their transfer would be in the best interest of 
the Army.  The burden of proof rests with the soldier concerned to provide substantial 
evidence that these conditions have been meet.  Claims that an Article 15 is untrue or 
unjust, in whole or in part, will not be considered under this paragraph.  The authority to 
adjudicate such claims rests with the Army Board for Correction of Military Records, 
after the recipient has exhausted other means for administrative remedy.
4.  Army Regulation 600-8-104 (Army Military Human Resource Records Management), 
Appendix B (Documents Authorized for Filing in the Army Military Human Resource 
Record and/or Interactive Personnel Electronic Records Management System), 
currently in effect, shows court-martial orders are filed in the performance folder when 
there is an approved finding of guilty on at least one specification.  However, if all 
approved findings are not guilty, the order is filed in the restricted folder of the OMPF.

5.  Army Regulation 640-10 (Individual Military Personnel Records), in effect at the 
time, assigned responsibilities for maintaining and controlling the OMPF and career 
management individual file.  Table 3-1 (Composition of the Military Personnel Records 
Jacket (MPRJ) stated DA Form 3355 will only be filed when part of the promotion 
packet.  The promotion packet may also be withdrawn from the MPRJ and filed 
separately within the Enlisted Promotion Section.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170018948
	
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